# FILED
April 29, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SESS ION

GARY S. MA

YES, )

) C.C.A. No. 03C01-9707- CR-00281 Appellant, ) ) Loudon County V. ) ) Honorable E. Eu gene Eblen, Jud ge ) STATE OF TENN ESSEE, ) (Post-Convicti on) ) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Rex A. Dale John Knox Walkup Attorney at Law Attorney General & Reporter 208 Bank Street Lenoir City, TN 37771 Ellen H. Pollack Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Charles Ha wk District Attorney General Frank Harvey Assistant District A

ttorney General P.O. Box 703 Kingston, TN 37763-0703

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge-2- O P I N I O N
The petitioner, Gary S. M ayes, filed a petition for habeas corpus and/or post-conviction reli ef in the criminal court at Lou don County. The court denied th e p et it io n a s b ar re d by t he stat ut e of l im itat io ns . T he pe ti ti on er

ap pe al ed . We affirm the judgment of the trial cour t.

In his pro se petition for post-convic tion relief, the petitioner al leges that he unknowingly ple

d guilty in 1993. The peti tioner pled to aggrav

ated sexual battery and was sentenc ed as a Range I offender to ten year s to be served at 30%. The petitioner has serv ed 30% percent of his ten-year sentence. The board of paroles denied him parole and said that he must serve the entire sentence. He alleges that the board’s denial was ba sed on an illegal 1976 conviction for attempted rape. He claims that the 1976 conv iction is illegal because his counsel did not i nform him of his right to appeal. The petitioner further alleges that the sexual treatment program presently required for parole eligibility was not a requirement for parole at the time of his conviction. He further alleges that he has been denied access to the progr am. Finally, the petitioner alleges that the psychological ev aluation required for parol e eligibility has not been performed on him yet. He alleges that the state ’s denial of access to these programs viol ates his liberty int erest.
The court appointed counsel to r epresent the petitioner. In an amended petition, the petitioner all eged that his convicti on was illegal. H e alleged that the indictment was fatally insufficient because it failed to al lege the culpable mental state required for agg ravated sexual battery. The petitioner further alleg ed that the classification of all sex offenders as mentally ill per sons pursuant to Tennessee Code Annotated § 33-6-302 (1984) violates the petiti oner’s rights to due process and equal protec tion. He alleges ineffectiv e assistance of counsel based on his trial attorney ’s failure to explain the

consequences of his guilt y plea.-3- The state argue d statute of li mitations and venue. After a b rief hearing, the trial court denied the petition as barred by the s tatute of limitations.
On appeal, the petitioner argues that the trial court erred in finding that his petition for post-convic

tion relief was barred by the statute of limitations . The petitioner pled guilty

on September 13, 1993. He did not appea l. When the petitioner's convict ion became final, the statute of limit ations applicable to post-conviction procee dings was three y

ears. Tenn. Code Ann. § 40-30-102 (repealed 1995). The three-year statute of limitations was subsequent ly shortened to one year by the new Post-Convic tion Procedure Act, whi ch took effect on May 10, 1995. See Tenn. Code Ann. § 40-30-201 et seq . (Supp. 1996). The new Post-Conviction Procedure Act governs this petition and all petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 et seq

. Because the old th ree-year s tatute o f limita tions had not expire d on the e ffecti ve date of the act, the petitioner had unt il May 10, 1996, in w hich to file his petition for post-conviction rel ief. See Compiler's Notes, Tenn. Cod e Ann. § 40-30-201 (1997). He filed his petiti on on September 4, 1996, several months after the statute had expired. His petition is therefore barred by the statute of limita tions. See e.g. , Shirley v. State , No. 02C01-9612-CR-00478 ( Tenn. Crim. App., at Jackson, Jan. 7, 1998).
The petitioner next argues that, because his convic tion became final before May 10, 1995, he should r etain the right to file a pos t-conviction petition within three years

of his conviction. He ar gues that limiting hi s right to file a petition to May 10, 1996, v iolates the ex post facto provisions of state and federal constitutions. W e disagree. Our courts have consistently rejected this argument. See State v Butler , No. 1338 (Tenn. Crim. App., at Knoxville, May 19, 1992); Johnson v. State , No. 02C01-9605-CR-00136 ( Tenn. Crim. App., at Jackson, June 10, 1997). Genera lly, an ex post factolaw is one that imposes punishment for an act which w as not punishable at the time of its commission, or-4- an additional punishment to that then prescribed. Calder v. Bull , 3 U.S. 386, 1 (1798); Duncan v. Missouri , 152 U.S. 377 (1894). Here, a change in the period of limitations for post-conv iction relief does not consti tute a change to the origi nal offense or its consequences. The chan ge in the period of limitati ons relative to petitions for post-convi ction relief has not affected a substanti ve right of the petitioner. It relates to

a matter of procedure only and is not an ex post facto law within the meaning of the cons titution. State v. Butler , No. 1338 (Ten n. Crim. App., at Knoxville, M ay 19, 1992).
The petitioner next argues that he timely filed his petition within the threeyear statute of limitations . Because we have deter mined that the three-year statute of limitations does not appl y to the petitioner, this

issue has no merit.
Lastly, the petitioner ar gues that his affidavit establ ishes that his petition was filed within the one-year statute of limitation s. Citing Carey v. State , No. 03C01-9309-CR-00330 (Tenn. Cr im. App., at Knoxvill e, Nov. 8, 1994), the petitioner asserts that the effective filing date for a pro se petitioner in custody is the date of delivery to the proper prison authoriti es. The Court in Care y specifically did not reach the issue of whether delivery to prison officials constituted filing wi

th the clerk of the court.
In his affidavit, the petitioner states that he personally delivered his petition to the authorities a t the Riverbend Maxi mum Security Institute on December 22, 1995. Also in the r ecord is a cover lett

er dated December 21, 1995, to the court clerk ask ing the clerk to file hi s petition and a prison log showing that the petition was notarized on December 21, 1995. The court held that the prison mail log w hich was made an exhibit to the proceeding did not support the petitioner’s claim. The mail log indicat es that the petition was mai led to the clerk of the court on Aug ust 29, 1996, approximately five days before the filing date of the petition its elf. The petitioner argues the December 22, 1995,-5- date of delivery that he s pecified in his affidavit, shoul d control over the date stamped filed by the clerk’ s office. We disagree. The state did not present an argument on this issue. The l apse of time between when the pet ition was notarized and when it w as mailed is suspect. How ever, we have rev

iewed the evidence and answered the argument set forth by the petitioner.
If any relief might be w

arranted, the petitioner must file his application for writ of habeas corpus in the Davidson County C riminal Court, the court closest to the petitioner. Tenn. Code Ann. § 29-21-105 (1980). According ly, to the extent that the petitioner’s petition is for habeas corpus relief, it is dismissed because the Loudon County court does not have jurisdiction. His petition for postconviction relief is barred by the statute of limitations.
Accordingly, the j udgment of the trial court is affirmed.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

______________________________ JOHN H. PEAY, Judge-6- ______________________________ CORNELIA A. CLARK , Special Judge